UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL STEVEN MAY,

Plaintiff,

Civil Action 2:11-cv-0839

v. Magistrate Judge Elizabeth P. Deavers

DOUG McGRATH, et al., 

Defendants.

ORDER

This matter is before the Court for consideration of Plaintiff’s Motion to Strike

Defendants’ Affidavits and Deny Summary Judgment. (ECF No. 32.) Defendants filed their

Memorandum in Opposition to Plaintiff’s Motion on December 21, 2012. (ECF No. 40.) 

Plaintiff has not filed a Reply and the time for him to do so has expired. Also before the Court is

Defendants’ January 7, 2013 Motion for Leave to File Supplemental Memorandum in

Opposition to Plaintiff’s Motion, as well as Defendants’ January 8, 2013 Motion to Amend

Affidavits. (ECF Nos. 41 and 42.) Additionally, the Court considers Plaintiff’s Motion for

Leave to Plead Instanter. (ECF No. 35.) 

For the reasons that follow, Defendants’ Motion for Leave to File Supplemental

Memorandum in Opposition to Plaintiff’s Motion is DENIED. (ECF No. 41.) Plaintiff’s

Motion to Strike Defendants’ Affidavits is DENIED. (ECF No. 32.) Defendants’ Motion for

Leave to Amend Affidavits is GRANTED. (ECF No. 42.) Defendants are DIRECTED to

submit amended affidavits WITHIN SEVEN DAYS OF THE DATE OF THIS ORDER. 

Plaintiff’s Motion for Leave to Plead Instanter is also GRANTED. (ECF No. 35.)

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A. Defendants’ Motion for Leave to File Supplemental Opposition 

Defendants seek leave to file a supplemental memorandum in opposition to Plaintiff’s

Motion to Strike. (ECF No. 41.) Although Defendants cite to Rule 15 of the Federal Rules of

Civil Procedure to support their request, S.D. Ohio Civ. R. 7.2(a)(2) governs requests for leave

to file supplemental memoranda. S.D. Ohio Civ. R. 7.2(a)(2). Pursuant to Local Rule 7.2(a)(2),

“No additional memoranda beyond those enumerated will be permitted except upon leave of

court for good cause shown.” Id. Defendants have failed to demonstrate the existence of good

cause to support their request to file a supplemental memorandum. Defendants’ Motion is,

therefore, DENIED. 

B. Plaintiff’s Motion to Strike Defendants’ Affidavits 

Plaintiff contends that two defects render the Affidavits of Doug McGrath and Brian

West ineffective to support Defendants’ Motion for Summary Judgment. First, Plaintiff points

out that the notary’s seal contained within the Affidavits does not include the notary’s name as

Section 147.03 of the Ohio Revised Code requires. (Pl’s Mot. 1, ECF No. 32.) Even if Ohio law

controlled in this federal question case, which it does not, the Affidavits would nevertheless

remain valid under Ohio’s “substantial compliance” rule. Buckeye Lake Firebells v. Leindecker,

No. 2010-ca-100, 2011 WL 1416021, at *4 (Ohio Ct. App. Apr. 13, 2010). More fundamentally,

Plaintiff has offered no federal authority for the proposition that such a defect would render an

Affidavit invalid to support a motion for summary judgment. 

The Court finds equally unavailing Plaintiff’s argument that the Affidavits are ineffective

because Defendant Thomas Jenkins, who shares an interest in this case, notarized them. (Pl.’s

Mot. 2, ECF No. 40.) Again, Plaintiff relies on Ohio authority to support his position, all of

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which predates the 1940s. (Id.) The Court’s independent review of federal law produced no

authority for the proposition that affidavits are ineffective when an interested party notarizes

them. Moreover, Rule 56(c)(4) of the Federal Rules of Civil Procedure, which sets forth the

requirements for affidavits filed in support of motions for summary judgment, provides no

indication that the validity of an affidavit depends on the individual who notarized it. Fed. R.

Civ. P. 56(c)(4). Plaintiff’s Motion to Strike is, therefore, DENIED. 

C. Defendants’ Motion for Leave to Amend Affidavits 

Defendants acknowledge that the Affidavits of McGrath and West do not comply with

Section 147.04 of the Ohio Revised Code because the notary’s seals contained within them do

not include the notary’s name. (Defs.’ Op. 2-3, ECF No. 40.) Defendants disagree with

Plaintiff’s argument that the Affidavits are ineffective by virtue of Defendant Jenkins having

notarized them. Defendants seek leave of Court to amend the Affidavits to correct this perceived

defect, as well as to bring the Affidavits in compliance with Ohio law. (Def.’s Mot. 3, ECF No.

42.) Although the Court is not convinced that the perceived defects render the Affidavits

ineffective, in an abundance of caution, to alleviate any concerns of impropriety associated with

the Affidavits, Defendants’ Motion is GRANTED. (ECF No. 42.) Defendants are DIRECTED

to amend the Affidavits of McGrath and West to bring them in compliance with Ohio law and to

have a disinterested person notarize them. Defendants are further DIRECTED to submit the

amended affidavits to the Court WITHIN SEVEN DAYS OF THE DATE OF THIS ORDER. 

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D. Plaintiff’s Motion for Leave to Plead Instanter 

Plaintiff’s counsel requests permission to file Plaintiff’s Response in Opposition to

Defendant’s Motion for Summary Judgment instanter. For good cause shown, Plaintiff’s Motion

is GRANTED. (ECF No. 35.) 

IT IS SO ORDERED

Date: January 11, 2013 /s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers

United States Magistrate Judge

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